Supplementary memorandum submitted by
Statewatch
IRREGULAR IMMIGRATION
AND EU EXTERNAL
RELATIONS
1. EU policy is increasingly incoherent,
unbalanced and unrealistic as regards both external relations
and migration objectives. First of all, there is a grave risk
that the EU's external human rights policy will be damaged by
these policies, not just indirectly because of the prospect that
the EU will have to reduce its human rights "demands"
in order to secure its demands for migration cooperation as part
of the relevant negotiations, but also directly because the EU
is encouraging third States to violate human rights law.
2. Secondly, there is a risk that the previous
balanced and realistic "root causes" approach to the
external aspects of migration law will now be overlooked. While
this approach has not been formally discarded, it is obvious that
the EU's efforts and energy are now devoted to the complementary
policy of inducing third States to cooperate with EU migration
controls, rather than examining why migration takes place at all.
It is striking, for instance, that the Commission's December 2002
paper contemplates major increases in funding for external EU
migration cooperation, but no increase in funding for poverty
relief, conflict prevention, et al. While the "development"
part of that communication still lays stress on the "root
causes" approach, the subsequent Council conclusions place
less stress on this issue. While the final Council conclusions
are still relatively balanced, we know from experience with the
EU's internal immigration and asylum policy that even where the
EU adopts a nominally balanced policy statements, the practical
implementation of that policy can still be restrictive.
3. Thirdly, it is arguable that the problem
with the "root causes" approach to migration as applied
since 1998 is that it did not go far enough. In particular, while
the Commission is surely right to emphasise the importance of
rural development in developing countries in its most recent paper,
one can observe the devastating effect of the EU's Common Agricultural
Policy on such rural development. It is striking that the CAP
is not directly addressed anywhere in the voluminous EU documentation
on this issue, even though the CAP is the only root direct cause
of irregular migration that is directly controlled by the EU.
With the EU giving more funding to each European cow than the
average income of each human in some developing countries, how
much irregular migration has resulted from this policy?
4. Fourthly, the very insularity and high-handedness
of the EU's approach risks damaging its external relations with
other countries. This is apparently the only area of EC external
relations where the Commission proposes (and the Council approves)
negotiating mandates without first ensuring through informal contacts
by the Commission and Council Presidency that the other party
wishes to negotiate an agreement on the subject. It even appears
that in several cases the EU was well aware when drawing up these
mandates that the other side has no interest in negotiations at
all. This can hardly improve the overall relationship between
the EU and the relevant countries. In fact, such unilateralism
is exactly the type of approach to external relations that European
critics of the Bush administration like to condemn.
5. Finally, the internal logic of the "punishment"
policy is clearly contradictory. Let us take the example of the
Former Yugoslav Republic of Macedonia. Although it is not currently
on the EU's list of States which should provide greater cooperation,
it is on the major transit route into the EU and so could be on
that list in future. Imagine the scenario of the FYROM government
being deemed non-cooperative on migration issues. Following the
suggestion of the Spanish Presidency before Seville, the EU reduces
aid, ceases its extensive conflict prevention efforts in FYROM,
terminates any further moves toward EU membership and suspends
ratification of its association agreement, thereby abolishing
trade preferences and investment guarantees. As a result, the
FYROM government would have fewer resources to control its borders
and no incentive to do so (as far as transit migration to the
EU is concerned). In fact, the likelihood of a civil war breaking
out in FYROM itself would be considerably higher; if this happens,
FYROM would become a more significant country of origin for migration
to the EU and there could be a knock-on effect on neighbouring
countries. Abolishing the trade preferences and investment guarantees
would also affect EU companies exporting to and investing in FYROM.
Even if we do not care about the welfare of inhabitants of FYROM
and neighbouring countries, the interests of EU business or the
EU's foreign policy goals, the fact remains that migration from
FYROM would likely increase. So even approaching the issue from
the hermetically sealed world of interior ministries, the policy
would fail in its own terms to reach its fundamental objectives,
quite apart from damaging a number of separate EU policy objectives.
6. It might be argued that a country not
far from civil war is not typical enough to use as a fair example
(although unfortunately quite a few countries are near to a civil
war or already experiencing one). But even if we concede this
point, if we take a more stable state as an alternative example,
the same criticism holds true, but simply to a lesser degree.
So if the EU terminated its cooperation with Albania, that country
would still have fewer resources to control its borders and less
incentive to do so. The situation would not be further aggravated
by an accelerated slide towards civil war, but the result would
still be contradictory to the intended aims of the EU.
7. Is there an alternative? As argued above,
the central failings of the EU approach are unilateralism, the
focus on only one aspect of migration policy and the departure
from the "root causes" approach to migration. At the
same time, one striking feature of international migration law
compared to other subjects of great interest to the international
community is the lack of a widely-supported framework treaty or
international organisation addressing the issue of migration (apart
from aspects of refugee law) holistically. Of course, certain
aspects of migration law are covered by the International Labour
Organisation and (through the General Agreement on Trade in Services)
the World Trade Organisation, but this leaves many important elements
out. We have the UN Convention on the Rights of Migrant Workers,
now in force from 1 July 2003, but it has only been ratified by
source countries of migration and does not address all aspects
of migration policy either. The EU, if it chose, could play a
significant role in building the institutional multilateral framework
for addressing issues relating to international migration, incorporating
a positive approach to the UN Migrant Workers' Convention.
8. This would obviously be a long-term project,
but in the meantime the EU could integrate aspects of this approach
into its bilateral relationships. True, some of the EC's recent
treaties (such as the Cotonou Convention and the treaties with
the Western Balkan States) incorporate positive aspects of migration
law into the dialogue with the EU's partners alongside readmission
commitments, and include a directly effective right to equal treatment
in working conditions. Earlier treaties with the EC (such as the
Association Agreement with Turkey and the Europe Agreements) go
even further. But very few of the EC's treaties provide for regulation
of primary or secondary migration to the EU, and since 1991 the
EC has eschewed inclusion of the right to equal treatment in social
security in any of its association agreements (leaving aside the
full free movement treaties with Norway, Iceland, Liechtenstein
and Switzerland). In order to develop a balanced policy on migration,
the EU has to accept that the external aspect of its immigration
policy must also address admission of migrants and more extensive
equal treatment within EU territory along with the EU's migration
control objectives. One example of how this approach might work
is the proposed "wider neighbours" policy, where the
Commission clearly foresees greater liberalisation of movement
of persons to balance enhanced controls [COM (2003) 104, 11 March
2003].
CONCLUSION
9. Policies on migration control and external
relations can equally suffer from a lack of realism on the part
of policy initiators. Where both policies overlap, and suffer
from a lack of realism simultaneously, the result could be counter-productive
policies that fail to achieve their own aims and damage other
migration and external relations objectives. Unfortunately, recent
developments in EU external migration policy suffer from such
flaws, simultaneously combining the self-absorption of a small
child with the arrogance of an (economic) superpower. Only a significant
shift in EU policy toward multilateralism, establishing a framework
for admission and equal treatment of migrants and back toward
examining root causes of migration offers the hope of a balanced
or coherent external migration policy.
This submission is extracted from Peers, S,
"Irregular Immigration and EU External Relations" in
Bogusz, Cholewinski, Cygan, and Szyszczak, eds, Irregular Migration
and Human Rights (Kluwer, forthcoming).
November 2003
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